99% of its Fellows cited a rising number of text messages used in cases;

97% of its Fellows had seen an increase in evidence from smart phones and other wireless devices in divorce cases over the last three years; and

70% percent used more evidence from applications (Apps), including Facebook and Twitter.

A few weeks ago, the Spartanburg Herald-Journal interviewed several attorneys, including AAML National President James T. McLaren from Columbia and me, about this survey and our experiences in dealing with these types of issues. I have seen very few contested divorce or child custody cases in recent years in which there was no electronic component, such as texts, emails, and social media posts.

Our firm requires our clients to complete a social media worksheet that details their social media presence as well as that of the opposing party. Our experience has shown that this approach helps identify potential problem areas early in the case (on either side) and helps minimize the chances of unpleasant (and potentially damaging) surprises later in the case. In discussing the numerous social media sites today, I said

“There’s Facebook and then there’s everything else. …Facebook by and large is the 300-pound gorilla in the room. Most of the evidence that we find and use in family court is from Facebook.”

President McLaren pointed out that “As people become more tech savvy, the more and more it’s used in divorce and child custody cases.” I also explained that technology has unfortunately made it easier for unfaithful spouses to cover their tracks today, which makes it all the more important that wronged party has a “tech-savvy attorney” on their side with the knowledge and experience to know where to look and how to find potentially damaging evidence. Sometimes, this may require the involvement of a forensic examiner to locate and review deleted data from computers and cellphones, which can then later be used in court.

Most people don’t realize that once they post information on social media, it is possible for it to be located and used against them in Family Court, and there’s nothing that attorneys can do to protect their clients from what they already have posted. Lawyers cannot advise their clients to change or destroy information once it’s been posted, which is called “spoliation of evidence”, as there can be serious consequences when this occurs. Illegal spyware is another problem, as it’s illegal and a felony in most states.

The law in these areas changes fast, and clients should make sure their attorney understands the impact of social media on divorce and child custody cases, especially what is and is not permissible, as the consequences can be dire and could affect the case’s outcome. Ben Stevens currently serves as the Vice-Chair of the AAML’s national Electronically Stored Evidence and Technology Committees and is the Co-Chair of its Technology Coordination Committee.

Protecting yourself online is so important. Making sure that you don’t post anything that can be used against is something everyone can use. I didn’t realize that Facebook was used so often for evidence. Thanks for the information.

It is really interesting that social media can have such a huge impact on child custody. However, this is definitely something that makes sense. Social media is a really good way to be able to learn more about people and their lives. This would be a great way for lawyers to be able to get personal information. It is amazing how much of an impact technology has made in our lives, and will continue to make in the future.

I know this is slightly off topic, but the inclusion of social media got me wondering about how many cases actually have a parent trap like situation where each parent is awarded one or an even number of their children. I have not seen this in the short period I have been study child custody cases, but a friend of mine brought up a case were both parents got one of their two children in the custody battle, I am assuming that they attained their children from previous marriages and simply retained them after the split. Are there cases you know of that has custody splitting children up?

It is quite surprising to see how much the digital age has influenced divorce situations. Do you think that if we were all to be using social media less that divorce rates would drop, though? However, I do think that it does provide good evidence. My brother was able to prove through Twitter that his wife was cheating on him as well as doing some other risky behavior to a family law attorney who helped him get sole custody of his kids.

That is astounding that between 70 and 97% of divorce cases involved evidence from cell phones, social media and apps. This really tells me that people share a lot about themselves with others. This could be a bad thing if you are going through a divorce. You might be currently married to your spouse. However, if you are getting a divorce, you have to keep in mind several aspects of non-disclosure rules. This is interesting how technology changes this idea.

It’s very interesting how you pointed out that people use social media to cover their tracks now days. Child custody cases are very difficult things to do in aspect of what is best for the child. Both parents majority of the time want what is fair, but forget what is best for the child. I remember when my parents got divorce that they were actually pretty good about me being able to spend time with both of them whenever I wanted it. Thanks for posting this good article, hopefully it helps others see reality.

This is such important information. With around 1 million divorces each year, social media is swarming with venting individuals. It’s very easy for children to access social media, so it’s best to keep it private.

It’s so interesting to see how social media affects so many aspects of our culture, including legal processes. It makes sense that social media like Facebook can be used in divorce and child custody cases as evidence. However, as you say, I don’t think a lot of people realize that their posts can be used as evidence. That’s just one more reason to be careful about how you use the internet; it could effect your divorce settlement and your child custody situation!